Are Handwritten Wills Valid?

Are Handwritten Wills Valid?

Because states did not want to make it more difficult for individuals to dispose of their property, many of them allow for handwritten, or holographic wills. While legally valid in many states, handwritten wills do pose potential problems for clients.

Formality of Wills

Wills are notoriously formal in nature. Many individuals who execute wills do so within the confines of a legal office with a notary and witnesses present. State laws may mandate these individuals to be present. Additionally, state law may require the witnesses to see the testator sign the will as well as see the other witness. State laws may require the testator to declare the document to be his or her last will and testament in order for it to be valid. Generally, it is required for two witnesses to be present. Some states require that there be three witnesses. These witnesses must usually be considered “disinterested,” meaning that they do not stand to inherit anything in the will.

Basics of a Handwritten Will

To avoid the necessary formalities involved in signing a typed will, some states have abbreviated rules for the testator. Some states permit the handwritten will not to be witnessed at all. However, other states require similar formalities as those present in typed wills. The hope

Requirements for a Holographic Will

State law dictates the requirements for a legally valid holographic will. Some states require the will to be completely handwritten. If the will is partially handwritten and partially typed, state law may dictate that the typed provisions are ignored. Some states require the will to be dated. It must generally be signed to be valid. Additionally, the individual making the will may need to provide language that states that he or she intends the will to serve as his or her last will and testament. The testator must be of sound mind at the time of making the will.

Witnesses

Even in states where holographic wills do not need to be witnessed, the probate court will generally require at least two individuals to testify that the will is written in the handwriting of the testator.

Jurisdictions that Recognize Holographic Wills

Approximately half of the states recognize holographic wills. This includes Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, New Jersey, North Carolina, North Dakota, Oklahoma, Pennsylvania, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. Some jurisdictions recognize holographic wills but only for sailors or individuals involved in the armed forces, which become invalid upon the individual’s return. Other states only admit holographic wills if they are drafted in another state and meet the legal requirements of wills in that state. Some states specifically prohibit the admission of holographic wills.

Proving the Validity of the Will

One of the more significant difficulties related to holographic wills is proving their validity in probate court. When witnesses are present, they may be able to testify that they observed the execution of the will. They may sign a proof of will form to this effect. For holographic wills, evidence must be brought in showing that the handwriting is indeed the testator’s. The executor may also need to provide sufficient proof that the testator seemed to know what he or she was doing at the time of executing the will and was devoid of any undue influence by others at the time that he or she signed the will.

Complications of Holographic Wills

Creating a holographic will can result in some complications. Judges may be more suspicious of these documents and more prone to believe that they were the result of coercion. Additionally, if there are no witnesses, they can be difficult to verify. Hybrid wills that have blanks for people to fill out may not be valid if they do not comply with the formalities of typed wills. These wills may cause greater confusion such as when the testator tries to make changes by crossing out provisions.

Legal Assistance

While holographic wills may be accepted in many jurisdictions, not properly preparing the will can result in it being invalid and the testator’s estate being subject to the rules of intestacy. This can cause the testator’s final wishes not to be honored. Individuals who are contemplating how to dispose of their property after their demise may wish to contact an estate planning lawyer for assistance. An estate planning lawyer is familiar with the specific laws in the jurisdiction. He or she can ensure that the proper formalities are followed.

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